¶1There is no evidence m the record showiug that the apparatus Heeman had in his saloon was a gambling device, or gaming machine. The prosecuting witness and the only other witness who testified, say it was; but their opinion can scarcely be regarded as evidence.
¶2It appears that a detective and an officer went to Heeman’s place. The detective put a “nickel” in a slot, which presumably was a hole or an aperture sufficiently large to admit a coin of that size. Thereupon Pleeman Remarking that everybody who put a nickel in the slot /vas entitled to a cigar or a drink, the detective accepted a cigar and put Heeman under arrest. Whatever the machine may be in fact, or whether or not it is actually operated for gambling purposes, is not the question here. This court can only be governed by such evidence as appears in the record filed here for review.
¶3So far as appears from the evidence the machine may be used as a convenient method of receiving the five cent pieces individuals offered at Heeman !s place for cigars and drinks. At any rate, it can not be said that one is gambling when he receives value for his money in the kind of commodities he knows the proprietor of the place sells for money. It is quite likely that there is some subterfuge in the method of the machine's operation as shown by the evidence. But if so,the evidence is net clear enough to permit the court to discover it. As the case stands,the defendant below was convicted on wholly insufficient evidence, and the judgment is, for that reason, reversed.